Brown v. State

• Decision Date: 27 June 1908
• Citation: 112 S.W. 80
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

Page 80

112 S.W. 80

BROWN v. STATE.

Court of Criminal Appeals of Texas.

June 27, 1908.

Appeal from Criminal District Court, Dallas County; W. W. Nelms, Judge.

W. O. Brown was convicted of murder in the second degree, and he appeals. Reversed.

Crane, Gilbert & Crane, Crawford & Lamar, and Muse & Allen, for appellant. F. J. McCord, Asst. Atty. Gen., and Chas. F. Clint, for the State.

DAVIDSON, P. J.

The writer respectfully states that he cannot agree with his Brethren in holding the act of the Thirtieth Legislature (Laws 1907, p. 269, c. 139) constitutional which authorizes those counties in which is included a city or cities aggregating 20,000 inhabitants to operate under a different rule with reference to the summoning and impaneling of grand and petit juries from the rule generally in vogue in the state. I have stated my reasons for dissenting at some length in the case of Bob Smith v. State (decided at the present term) 113 S. W. 289, and refer to that case for dissenting on that proposition.

The majority of the court thinks the judgment should be reversed for reasons herein stated. Our Brother BROOKS has written an opinion, among other things, holding the charge is sufficient as given by the court in regard to the issue of manslaughter. We cannot concur in these views, and believe the charges given are sufficiently erroneous in this respect to require a reversal of the judgment. A sufficient summing up of the facts as bearing upon the question of manslaughter will be found in the statement by Judge BROOKS in his opinion herewith filed, and unnecessary here to recapitulate. The charges given are very general, following the statutory definition. Among other things, the court charged that "a provocation must arise at the time of the commission of the offense, and must not be the result of a former provocation, and that the act must be directly caused by the passion arising out of the provocation, and that it is not enough that the mind be merely agitated by the passion arising from some other provocation, or a provocation given by some other person than the party killed, and, further, an assault and battery producing pain or bloodshed, or any condition or circumstance, or combination of conditions or circumstances, which is capable of creating and does create sudden passion, such as anger, etc., which renders the mind incapable of cool reflection, and, further, in a general way, instructs the jury that the provocation causing sudden passion must arise at the time of the killing, and it is the duty of the jury in determining the adequacy of the provocation, to consider in connection therewith all the facts and circumstances in evidence, and if they should find that by reason thereof the defendant's mind at the time of the killing was incapable of cool reflection, and that said facts and circumstances were sufficient to produce such state of mind in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirements of the law. Exception was reserved to these phases of the charge and omissions.

Appellant's contention is that these charges on manslaughter are not sufficient; that as given the charge relegates the adequate cause and sudden passion, first, to an assault producing pain or bloodshed, and, second, a general statement as above indicated. His further contention is that the court should have gone farther, and applied the law to the facts, more particularly to the end that the jury might understand the nature of adequate cause and sudden passion arising out of the immediate facts attending the homicide and as applicable thereto. If the deceased provoked the difficulty by taking a seat upon the arm of the chair occupied by appellant and placing his arm around him under the circumstances detailed by him, then deceased was the aggressor and produced the occasion of the difficulty, and appellant had the right to ask him to desist, and upon his failure to do so to resent such insult and assault, and if Johnson then attacked him, and caught him in the collar with his hand, and struck him over the eye, and followed this up by throwing him upon the floor and choking him, these would be additional causes of provocation, and, although appellant may have gone too far in using his pistol by shooting, it would still be manslaughter, and this phase of the law should have been given under the facts of this case, and if appellant used more force than was necessary under the law of self-defense, and his mind was incapable of cool reflection, his offense might still be no higher than manslaughter.

Second. Even if appellant went sufficiently far in repelling the act of the deceased in going to the chair to place him beyond the rule of self-defense, and drew his pistol with a view of forcing the deceased to absent himself from the chair and taking his arm from around him (appellant), and this was done, not with a view of killing, but of forcing the deceased from him, and in the struggle he shot and killed, this would be manslaughter. If, however, appellant drew his pistol, conceding that he was in the wrong, and it was drawn for the purpose of taking Johnson's life, then it might be otherwise; but that is not under discussion at this point. And if during the struggle appellant was getting the worst of the difficulty by reason of the athletic power of his antagonist, and was being choked, and he shot to save his life, or because of the severe punishment being inflicted by the deceased, this would be manslaughter.

Third. If appellant believed, at the time that Johnson took a seat by him, that it was done for the purpose of provoking him into a difficulty, to the end that he (Johnson) and Miller might inflict severe punishment on him, and that he anticipated from the beginning and during the difficulty that the conflict would be between himself and two antagonists, this would have a tendency to more strongly agitate his mind, and he would have the legal right from the standpoint of manslaughter to defend against both, as much so as he would have the right to defend against the attack or anticipated attack of both if his life was in danger or his body of serious injury from the standpoint of self-defense. In other words, the right of appellant to resist the attack or anticipated attack by two antagonists, under the circumstances, would be as cogent from the theory of manslaughter as it would be from the standpoint of self-defense, provided, however, that he believed that such attack was made for the purpose of inflicting chastisements causing pain or bloodshed. The court recognized this doctrine as applicable to the law of self-defense, and so charged the jury, coupled with the further proposition that his life must be in danger or his body of serious injury in order to justify the killing.

It is sometimes a little difficult to draw the line where the question of serious bodily injury is involved between self-defense and manslaughter, and, where these propositions are in the case, the court should definitely instruct the jury so that they will understand where one ends and the other begins, and be able to draw the line of demarkation from the facts. So it is clear, as we understand the facts and the law, that if Johnson alone provoked the difficulty with a view of inflicting severe chastisement, as developed by the facts, upon appellant, he would have the legal right to have this phase of the law submitted as bearing upon manslaughter. If appellant, under the circumstances, thought the deceased was bringing on the difficulty, to be joined in by Miller, and that the difficulty was to proceed upon the theory of both of them giving him a beating, he had the right to have the law of manslaughter charged from this standpoint; or if appellant, being in the wrong, but with no intention of killing, was sufficiently pressed to believe that his life was in danger, and shot fatally, he still would be entitled to an application of the law of manslaughter from this standpoint. As before stated, the court recognized the doctrine of self-defense from the attack or anticipated attack of the deceased and Miller, but did not instruct the jury in regard to this phase of the law as applicable to manslaughter. Because of these defects or omissions in the charge, this judgment must be reversed.

There is another charge in the case that it occurs to us is erroneous, which is as follows: "The fact, if it is a fact, that the defendant, Brown, was in the wrong in striking Miller, as that difficulty is before you in the evidence, cannot be considered by you in passing upon whether or not the defendant was the aggressor in the subsequent transaction with the deceased, Johnson, resulting in the death of said Johnson." Now, it will be noticed from the facts that appellant was in the wrong in striking Miller, and that a separation occurred, as well as an abandonment of the difficulty, which was followed by a hurried conversation between Miller and deceased, and followed still further by the approach of deceased on appellant, with an immediate difficulty ending in death of the deceased. This transaction between Miller and appellant seems to permeate this record. It entered into the trial of the case from beginning to end, and gave it a coloring that the facts would not give forth but for the attack on Miller by appellant. If this testimony was legitimate, then what was its office or mission in the case? The state introduced evidence in regard to this difficulty. The defendant testified, also, about it, and appellant makes it clear that he thought and believed, from what he saw occurring between Miller and deceased, that Johnson was to provoke the difficulty and Miller to enter into it. We do not see how these facts can be in this record, and yet not be considered by the jury in passing on the question as to whether or not the defendant was the aggressor. It was the fact that Miller and deceased had...